Stories this past week out of two different states highlight the ways in which prosecutors’ public comments may expose their biases and, in some cases, their utter disdain for defendants and the courts in which they are tried. Prosecutors’ comments to the media have the potential to make a profound difference in what people think about particular cases and defendants, how they react to decisions made by judges and juries, and how the public views the criminal justice system more broadly. Although rules of conduct provide guidelines and some restrictions on what prosecutors can say (see Rule 3.8(f) here), like many professional regulations, they lack persuasive power where they remain unenforced. And, like all regulations, they do not anticipate and prohibit every potentially damaging incident. Nonetheless, as these stories reveal, prosecutors would do well to pay attention to a few basic principles when it comes to making public comments.
In Johnson County, Indiana—part of metropolitan Indianapolis—the current County Attorney, Bradley Cooper, is facing potential discipline for comments he made to the IndyStar paper in November of 2014. Before he was elected head of the office in 2009, Cooper was a long-time prosecutor in Johnson County, joining the organization in 1994. In 2000, he successfully prosecuted and put on death row Michael Dean Overstreet for the murder of Kelly Eckart. Indeed, this is a case and a result he boasts about on the County Prosecutor webpage. And it was the Overstreet case that ultimately landed Cooper in hot water.
In 2014, a judge in another county who received the case by special appointment held a multi-day evidentiary hearing to find out whether Mr. Overstreet was mentally incompetent to be executed. Reviewing the testimony of witnesses and several experts, as well as documentary reports, Judge Jane Woodward Miller issued a 137-page decision finding that Mr. Overstreet is “not competent to be executed.” The ruling probably did not surprise many who had become familiar with the defendant over the years. Throughout the history of the case, evidence that he suffered from a severe mental illness suffused the proceedings. In 2007, the Indiana Supreme Court noted that “there is no doubt that Overstreet suffers from severe, documented mental illness,” and that “[i]t is clear that Overstreet suffers from . . . a psychotic disorder that is the source of gross delusions.” Judge Miller’s ruling confirmed the observations of several experts who all agreed that the defendant suffers from schizophrenia and does not truly comprehend what is happening in his case. Indeed, the judge’s ruling was so thoughtful that the Attorney General decided not to appeal her decision. The outcome left Mr. Overstreet on death row, but unable to be executed unless he is somehow restored to competency.
None of this—and none of the professional rules governing prosecutors—prevented County Prosecutor Cooper from sounding off about the judge’s decision. He made his views loud and clear to the IndyStar and Associated Press:
I was angry and suspicious when this case was sent to a distant judge who is not accountable to the Johnson County citizenry or a grieving mother who couldn’t even afford to drive up for the hearing, . . . The idea that this convicted rapist murdering monster is too sick to be executed is nothing short of outrageous and is an injustice to the victim, her mother, the jury and the hundreds of people who worked to convict this animal.
Now, Mr. Cooper will attend a hearing in early October at which the state supreme court’s disciplinary commission will gather information on whether “Cooper’s comments violated a professional conduct rule barring lawyers from making false statements ‘concerning the qualifications of a judge.’”
Mr. Cooper’s comments about the judge and her lack of “accountability” could stoke passions in a way that compromises the judiciary’s independence. A recent Brennan Center report details the problem judges in criminal court encounter when subject to politicized judicial elections. It is revealing that Mr. Cooper here was complaining explicitly about the lack of influence that he, the Johnson County voters, and the victim’s mother herself would have on Mr. Overstreet’s post-conviction proceedings. If we adopted Cooper’s view, politics would dictate outcomes in criminal cases. On that theory, why have judges at all? We could simply let the prosecutor decide whether the defendant is guilty and choose the appropriate sentence.
Furthermore, if the commission decides to undertake a thorough investigation of Mr. Cooper and his actions during the Overstreet case, it may find more than just inappropriate comments. On direct appeal, the Indiana Supreme Court acknowledged that the prosecutors in Mr. Overstreet’s case had engaged in misconduct by failing to turn over a key witness statement to the defense (but ultimately denied relief on this ground).
While it appears that the disciplinary commission is concerned about what Mr. Cooper said regarding Judge Miller’s integrity, one must not look past the glaring and dehumanizing comments he made about a severely mentally ill man facing execution. If we relied on Mr. Cooper’s statements, we might think that Judge Miller created a whole new exception to the death penalty based on a defendant’s incompetency to be executed. On the contrary, the principle that America does not execute individuals who are unable to understand the proceedings against them has been enshrined in our nation’s Eighth Amendment jurisprudence by the U.S. Supreme Court since at least 1986. Setting constitutional rights aside—apparently the way Mr. Cooper likes it—his language is disconcerting. Describing a person as a “monster” and an “animal” when it has been well-established that he is a man who has suffered several mental illness for decades encourages society to disregard people with mental illnesses altogether, even making the case that they are less than human. While the crimes for which Mr. Overstreet was convicted deserve serious punishment, they should not and do not negate his status as a human. Yet Mr. Cooper’s language serves to legitimize the marginalization and punishment of individuals suffering from severe mental illness and even those with intellectual disabilities.
It turns out that comparing capital defendants to animals is a more common move of prosecutors at trial than you might expect. In only rare circumstances does it trigger consequences, however. In South Carolina this year, a federal judge overturned a defendant’s death sentence where a prosecutor used similarly dehumanizing language to inflame jurors. The notorious prosecutor Donnie Myers called Johnny Bennett, an African-American man, a “monster” and compared him to “King Kong.” In his ruling overturning the sentence, Judge Richard Mark Gergel wrote: “The fact that [Bennett] is a very large black man makes the King Kong reference even more odious and inflammatory in this case because it plays upon a racist stereotype of the bestial black savage that seems calculated to animate and excite the all-white Lexington County jury.” Whether capitalizing on racism or dismissing mental illness, a prosecutor’s language is well known to influence his intended audience. (As an aside, a recent report by the Fair Punishment Project found that prosecutors like Mr. Myers who fervently seek the death penalty also tend to engage in a disproportionate amount of prosecutorial misconduct. Perhaps the prosecution’s earlier misconduct in Mr. Overstreet’s case is further evidence of this trend.)
Meanwhile, about 800 miles away, a trial that we’ve been following recently came to its conclusion with inflammatory comments from the prosecutor trying the case. The judge in St. Lawrence County, New York found defendant Nick Hillary is not guilty of murder. The District Attorney, Mary Rain, had a lot invested in the case, and, unable to accept the loss, decided she could at least win in the court of public opinion. Ms. Rain told the media that she was “100 percent certain that Nick Hillary committed this crime. . . . He’s the one who did it. . . . Just because he was found not guilty doesn’t mean he’s innocent.” Here, the county’s head prosecutor fails altogether to accept the definitive outcome of a trial that she herself prosecuted, instead fomenting public mistrust of the justice system. Moreover, her statements ensure that Mr. Hillary, whose life has already burst asunder, will face every obstacle in putting it back together. Why did Ms. Rain lash out after losing a trial in which the State had nothing but circumstantial evidence and in which she even bent the rules in her favor? Perhaps because she based her campaign for office in part on a promise to bring the killer of the victim, Garrett Phillips, to justice. Rather than consider alternate suspects or urge additional investigation, Ms. Rain has staked her claim that she fought for justice and the system has failed her.
It is unclear whether efforts to unseat Ms. Rain, which had already been afoot before this high-profile trial, will continue. If they do, one can imagine her comments to the media providing additional evidence to the charges that that she lacks the ability to fulfill her professional duties and abide her ethical obligations. As law professor and former prosecutor Bennett Gershman has written, “when a prosecutor comments about specific cases, discusses the evidence and the defendant’s character, and offers opinions about the credibility of witnesses and the defendant’s guilt, the prosecutor crosses the line.”
If Mr. Cooper’s predicament or Ms. Rain’s looming troubles sound familiar, you may recall the extraordinary whistleblower complaint registered against elected District Attorney Mark Lindquist in Pierce County, Washington last year. “According to [the whistleblower’s] complaint, ‘Lindquist expends inordinate public resources to include DPA involvement in efforts to persuade favorable media coverage in a manner that best promotes Lindquist or his version of events, and disparages his adversaries.” While Lindquist may represent one extreme, the complaint underscores both the vast powers and responsibilities prosecutors possess when it comes to communicating with the public. Let’s hope that in the cases of Mr. Cooper and Ms. Rain, state bars and electorates are prepared to hold them accountable for their unwillingness to show restraint and respect the justice system that they purport to serve.